The Moneylenders Act 1951 distinguishes between casual loans and those made in the course of a moneylending business; the burden is on the defendant to demonstrate a triable issue against a summary judgment application.

[1] This is an appeal by the Plaintiff against the decision of the Sessions Court Judge dismissing his application for summary judgment against the Defendant. I allowed the appeal. These are the full reasons for my decision.

Salient Background Facts

[2] The Plaintiff was attached to Ranhill Berhad and its subsidiaries. The Defendant was a shareholder of all the companies to which the Plaintiff was attached and they have known each other for some time.

[3] The Plaintiff extended a loan to the Defendant in the sum of RM500,000.00 on 24 August 2008. The Plaintiff alleged that because he extended the loan to the Defendant using his wife's overdraft facility, the Defendant had agreed to pay him interest on the loan at the rate of 7.28% on daily rest which is the interest rate that has to be paid to the bank in respect of the overdraft facility.

[4] According to the Plaintiff, the Defendant has repaid him a sum of RM150,000.00 leaving a principal sum of RM350,000.00 unpaid and interest as at 30 November 2017 amounted to the sum of RM464,869.68.

[5] Because the Defendant has failed and refused to pay him the loan and the interest thereon, the Plaintiff has brought an action against the Defendant to recover the outstanding amount in the Sessions Court.

[6] The Defendant resisted the suit brought by the Plaintiff on the ground that the Plaintiff is an unlicensed moneylender and therefore the loan is illegal and unenforceable. The Defendant also denied that he had agreed to pay interest to the Plaintiff. The Defendant also alleged that in any event, the Plaintiff's cause of action is time barred as more than 6 years have elapsed from the date of the advance given by the Plaintiff.

[7] The Sessions Court judge dismissed the summary judgment application filed by the Plaintiff and the Plaintiff has appealed against the decision.

The Law

[8] It is well established and already settled law that once an O 14 application is demonstrated to be correctly and properly filed, the burden shifts and thus rests on the defendant who seeks to resist the application to raise a defence which shows a " bona fide triable issue", in the sense of an issue which justifies and warrants the matter to be considered at the trial proper

[9] This is entirely in keeping with the requirements of O 14 r 3 of the RC 2012 which provide that unless the defendant satisfies the Court with respect to the claim, or part of a claim, to which the application relates that:

i) there is an issue or question in dispute which ought to be tried; or

ii) there ought for some other reason to be a trial of that claim or part.

[10] The Court may give such judgment for the Plaintiff against the Defendant on that claim or part as may be just having regard to the nature of the remedy or relied claimed.

[11] It thus follows that in the often quoted decision of the former Supreme Court in National Company For Foreign Trade v. Kayu Raya Sdn Bhd , 1984 MarsdenLR 58 it was authoritatively ruled as follows:

"We think it appropriate to remind ourselves once again that in every application under O 14 the first considerations are (1) whether the case comes within the Order and (b) whether the plaintiff has satisfied the preliminary requirements for proceeding under O 14. For the purposes of an application under O 14 the preliminary requirements are:

(i) the defendant must have entered an appearance;

(ii) the statement of claim must have been served on the defendant; and

(iii) the affidavit in support of the application must comply with the requirements of r 2 of the O 14".

... If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the plaintiff will have established a prima facie case and he becomes entitled to judgment. The burden th